Saturday, December 31, 2011

A police officer from Rick Perry's hometown of Haskell pleaded no contest two weeks ago "to fabricating physical evidence ... and was sentenced to seven years probation" for planting meth on a suspect at a traffic stop, the Abilene Reporter-News reported (Dec. 31). Now, another man has filed a civil-rights lawsuit claiming the same officer planted drugs on him, resulting in the loss of his job as a car salesman after his arrest and photo were published on the front page of the Haskell weekly paper. The officer told a judge he had supporting information from an unnamed confidential informant in order to obtain a search warrant before allegedly planting the drugs, according to the suit.

The officer, William "Bill" Glass, sounds like your typical, Tom-Coleman style gypsy cop: "Apart from working at the Haskell Police Department, public records show Glass has been employed with at least seven law enforcement agencies" since 1995.

This could get (even more) ugly. Will more people come out of the woodwork to claim Officer Glass set them up? Once may be an outlier; twice (if allegations are true) would make a pattern. In the Dallas fake-drug cases, where informants helped police set up defendants using doctored pool chalk, investigators found two dozen defendants who'd been convicted and/or deported based on false allegations. How many more, one wonders, were victims of this fellow's frame-up jobs before he was finally caught?

Friday, December 30, 2011

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:

Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"

Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

Thursday, December 29, 2011

The Dallas Morning News offers up a cautionary tale ("Smaller Texas counties struggle with bail bond regulation," Dec. 29, behind paywall) regarding bail bond regulation, or the lack thereof, in smaller Texas counties (with populations below 110,000, which are not required to have a local bail bond board. They tell the story of

a West Texas bail bond company [that] ended up in a financial bind.
The company shut its doors. Dozens of its clients forfeited their bonds when they failed to show for court dates.

And when county officials tried to collect what was owed, they discovered that the bail bond company’s listed assets didn’t match with reality.

Dozens of Texas counties face similar prospects. At a time when, critics say, some larger counties don’t have enough authority to regulate bail bond companies, smaller counties have even less.

Bail bond boards are required in counties with at least 110,000 residents. The boards have significantly more power than the sheriffs responsible for regulating bail bondsmen in smaller counties.

For example, bail bond boards require security deposits of “not less than $50,000” from licensees. But sheriffs cannot impose the kind of licensing system found in bail bond board counties, according to a state attorney general’s opinion.

That means less oversight of such companies and potentially more trouble for counties trying to recover bond money.

The counties that lack bail bond boards “are just the wild, wild West,” said Bryan Clayton, first assistant district attorney for the 119th Judicial District, covering Tom Green County and two nearby counties.

Ed Timms and Kevin Krause have been doing a great job on their bail series throughout 2011, and this end-of-the-year special is no exception. Terrific stuff, guys.

Today's New York Times includes a staff editorial focused on Judge Ken Anderson's role in Michael Morton's false conviction out of Williamson County. Opined the Times, "While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction." They acknowledge, though, that it's a test that's been long-ago, many-times failed, as "bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors."

The Times recommends that "Courts should more closely supervise prosecutors by using pretrial conferences where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties." Criminal sanctions, to me, though, are mostly pointless because there's no one except the DA's offices themselves with jurisdiction to prosecute such cases and no incentive for them to do so aggressively. OTOH, I like the pretrial conference idea, and will henceforth add that to the grab bag of suggested legislative solutions which Grits has been compiling on the subject.

There's an excellent piece in the Dallas Observer this week (Dec. 29) by Leslie Minora titled "Beyond DNA, Difficult Tests for the Justice System," which brings readers up to speed on a pair of non-DNA exonerations in Dallas this year and the future of innocence cases. Particularly troubling was the case of Dale Duke, who accepted a no-contest plea on a 1992 sexual assault he always denied in order to stay out of prison, but

In an Orwellian twist, prosecutors brought Duke back to court in 1997 and claimed he did not complete the treatment program. In effect, Duke violated the terms of his probation by not admitting to a crime he didn't commit. Duke took a Tuesday off work as a customer-service assistant at Eckerd to appear in court. He never returned to that job. The judge revoked his probation and saddled him with a 20-year prison sentence.

Watkins' Conviction Integrity Unit found corroborating evidence for Duke's innocence claims in their files that had never been turned over to the defense, which was the basis for overturning his case. The judge ruled that, with the evidence prosecutors concealed back in 1992, no reasonable jury would have convicted him. Though four of the 17 exonerations under DA Craig Watkins have been non-DNA cases, former public defender

Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says.

"I get that sometimes it's not as clear-cut as a simple DNA test, because that's a gold standard, but there are cases ... where there should be some things happening," she says, though she wouldn't mention any specifically, fearing they would take even longer. "[Russell Wilson] is a very well respected attorney; he's the nicest man on the planet. I just want to see more action," Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. "I'll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing," Moore says, but she's still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

Grits has said in the past that non-DNA case are "the future of the innocence movement," and this article aptly explains why. DNA exonerees, Minora points out:

occupy a troubling time in criminal justice history. Their arrests, and the arrests of nearly all of the Dallas County exonerees, occurred from the early 1980s to the early 1990s. In this decade-long window, DNA samples were collected because blood-type testing was available, but the samples were not tested with the technological acumen that's been developed since.

Starting in the mid-1990s, the testing of DNA evidence became standard protocol, meaning the number of incarcerated people who can be exonerated by previously untested DNA evidence is finite, with few exceptions.

Tis true. In most older cases, DNA either wasn't collected or wasn't kept, and it only exists in the first place in around 10% of violent crimes. In essence, DNA provided the equivalent a statistical sampling of innocence cases and a unique window into their causes.

"Now we've shown that there are wrongful convictions, so now our conversation can be extended to eyewitness identification, investigative techniques, even prosecutorial misconduct, the culture of district attorney's offices ... and our failure to live up to the code of criminal procedure," seeking not only convictions, but justice, Watkins says.

Williamson County DA John Bradley raised his head out of his electoral foxhole long enough to put a devilish spin on the quest for non-DNA exonerations. He:

said as more DNA cases are resolved and there are fewer of them, organizations like the Innocence Project must take on new kinds of cases. "We have an Innocence Project, therefore there must be innocent people," he says, leading up to his point that "just as we sometimes wrongfully convict a person, sometimes we wrongfully exonerate a person."

Ironically, given that Mr. Bradley is commenting on it, in the near term, prosecutorial misconduct - particularly withholding exculpatory evidence, as notoriously occurred in the Michael Morton case on his predecessor's watch - may be the quickest route to exoneration. That's what got Mr. Duke out.

Besides so-called "Brady violations," though, the concern was expressed by others, IMO accurately, that "DNA evidence may have raised the bar to a level too often unattainable by cases without it." Certainly there are still categories of non-DNA cases to mine for valid innocence claims. An examination of arson cases by my employers at the Innocence Project of Texas and the state fire marshal, initiated at the recommendation of the Forensic Science Commission, could discover false convictions based on flawed forensics testimony. Nobody has thoroughly vetted (nor to my knowledge, even identified) the 2,000 or so cases where former Fort Bend Sheriff's Deputy Keith Pikett claimed to have used his dogs in "scent lineups." And there are other similarly discrete categories of cases to explore.

But looming over all such cases, and indeed, though unstated, over this entire article, was a decision by the hard-line wing of the Texas Court of Criminal Appeals this summer in Ex Parte Robbins, in which the court overtly realized fears that DNA "raised the bar" for exoneration too high. Particularly in cases centered around bad forensics, the Legislature will likely need to adjust the habeas statutes for anyone to actually make use of them in junk science cases.

So I agree, the future of the innocence movement must inevitably move "beyond DNA," and on the policy side in Texas where I work, it has, with the passage of eyewitness ID legislation and requiring corroboration for confidential informants, in particular. But those are front-end fixes. On the back end, access to DNA testing has been expanded and the Lege has provided compensation for exonerees. But after Ex Parte Robbins, there likely needs to be a separate legislative fix before the courts will be able or willing to act on significant numbers of non-DNA"actual innocence" habeas corpus claims - particularly regarding junk science, from arson cases to dog-sniffs - however valid or compelling.

Wednesday, December 28, 2011

The combined turnover rate for Texas juvenile and adult correctional officers (i.e., prison guards) in FY 2011 was 23.4%, according to a new report (pdf) on state employee turnover by the state auditor. That's 22.3% for adult COs, and 39.6 for JCOs, including layoffs. Other key highlights:

Statewide, 29.6% of turnover came from involuntary separations - either firings or other reductions in force (RIF), sometimes for budgetary reason, with 14% of departing employees dismissed for cause and another 9% resigning in lieu of dismissal.

The Texas Education Agency had a higher one-year turnover rate than TDCJ, but that's a statistical fluke resulting from a budgetary RIF. TDCJ "accounted for the largest percentage of separations (29.6 percent) within the State. The majority of the separations at TDCJ during fiscal year 2011 were voluntary. TDCJ’s turnover rate was 19.2 percent in fiscal year 2011."

The most experienced staff are more likely to retire these days: Statewide across all agencies, "Between fiscal years 2007 and 2011, retirements increased by 40.6 percent." (Some of those folks may still be working: A wag might add that even Governor Rick Perry has taken retirement, and is surely counted among those statistics.) The number of voluntary separations increased 12.9% over last year.

"Thirty-four state agencies experienced reductions in force. The Texas Youth Commission, the Texas Education Agency, and the Department of Criminal Justice accounted for 72.6 percent of all staff reductions due to reductions in force in fiscal year 2011."

Reductions as TYC was merged into the new Juvenile Justice Department accounted for a large chunk of involuntary separations: "The three job classification series with the most separations as a result of reductions in force in fiscal year 2011 were Juvenile Correctional Officers, Program Specialists, and Administrative Assistants."

There are some false memes in the criminal justice system about which even those who work in the field have serious misconceptions, often fundamentally misunderstanding the reality of the system they work in because of professional myopia.

A great example may be found in the recent writings of former Harris County prosecutor turned defense attorney and blogger, Murray Newman, who has a lengthy post up complaining that people who never have contact with the criminal justice system still get to vote and thus give us elected officials like his nemesis Harris County District Attorney Pat Lykos, etc., etc.; if you read Murray's blog it's all familiar territory, and this post isn't meant to defend or criticize Lykos (or Murray, for that matter). But Grits feels compelled to dispute a central premise around which much of the rhetoric in that essay revolves: Writes Newman, "Let's face it, as a wise Homicide Investigator once told me, we deal with probably less than 5% of the population (if that much). The President, the Governor, or the Legislature can enact laws that affect us all, yet most citizens' involvement with the criminal justice system comes from jury duty."

Following that theme, Murray spends much of the rest of the post discussing the differing perspectives of "the 5%" and "the 95%," playing off of the Occupy Wall Street movement's "We are the 99%" meme. The "95%," in Murray's worldview, are the average citizens who never come into contact with the justice system except for jury duty. Let's leave aside the oddity of the premise that the criminals referenced by Murray's Homicide Investigator friend are more likely to have an informed opinion about who would make a good DA than Republican politicos or people who sit on jury duty. Instead, let's take a closer look at that 95% number.

There's a sense in which it's formally accurate: At any given time, about 4% of adult Texans (1 in 25, or around 3/4 million) are under direct supervision of the justice system, either in prison, jail, on probation, or on parole, according to the most recent data. But more people are charged than convicted, and many more are arrested than charged. So in a broader sense, a lot more people than that 4% have brushes with the justice system, particularly early in life. However, even Grits was surprised to see a recent study published estimating that "between 30.2% and 41.4%" of youth will be arrested before they're 23 years old (excluding arrests for minor traffic violations). That's up from 22% of the population in a cohort studied in the '60s. So it's never been 5%, but today the figure is higher than ever.

In the future, then, will the politics of criminal justice change with generational demographics? Murray's dreamworld where bad guys who break the law are just 5% of the public and "the 95%" need never really think about the justice system was never more than wishful thinking. But for a generation among whom a third or more will face arrest and prosecution, it's an almost absurdist contention.

All this to say, as today's generation of youth ages, a greater number of adults than ever will have been arrested on charges they consider either reasonable or unfair, humiliated or treated respectfully through a jail booking, faced a prosecutor who was either fair, unreasonable or somewhere on the spectrum in between, sought an attorney and found (or been assigned) a good or a bad one, and have memories of the whole experience burned into their souls. Are such folks the system's frequent flyers? No. Do they remember the cold smell of jail, the behavior of police and jailers, the treatment of other inmates, hours waiting in a cell or "on the bench," the anxiety about the strength of friendships or family ties as they waited to be bailed out? Probably, yes. That means that many aspects of the criminal justice system are not, in fact, merely theoretical for a substantial block of voters. It's a disorganized and relatively unconsidered constituency, in political circles, at least, but it's not a small one.

Are such memories front and center when people head to the polls to vote for a new DA? Perhaps not, because that's not how these races are run. Candidates in contested campaigns for judge, DA or Sheriff typically tell people to vote based on fear of some dangerous "other" (killers, sex offenders, drunk drivers, etc.). Candidates from both parties routinely ignore (or like Murray, are in denial about) the common experiences of the justice system by a legion of less serious offenders, so questions about how the average person might want to be treated never come up. The terms of mainstream political debate just won't allow it for fear of being labeled "soft on crime."

It's not inevitable, though, that that will be the case forever. Part of the change brought about by the innocence movement - and cases like the Michael Morton exoneration in Williamson County - has been that DAs and the tuff-on-crime crowd can no longer ignore the fact that the system's biggest errors are now well known to most voters, who can suddenly identify with the possibility such mistakes could happen to them or their loved ones. Similarly, the dynamics of courthouse politics may subtly but significantly shift over the years if a large proportion of today's youth grow up with personal experience as criminal defendants and, in some cases, as much empathy for people caught up in the justice system as respectful awe of prosecutors of police.

Murray's right that a majority of voters in the April GOP primary won't know much about criminal justice beyond the scope of an occasional round of jury duty or the flotsam they see on the nightly news. But he overestimates the extent to which those caught up in the justice system represent a tiny, marginal class. It's not such a small group, these days, just an incoherent one.

Tuesday, December 27, 2011

In Williamson County, vandals are leaving reminders on John Bradley's yard signs of the District Attorney's role delaying Michael Morton's exoneration by opposing DNA testing of a bloody bandana for years on end:

Ouch! Grits doesn't condone vandalism, but you gotta admit that's a poignant image, borne of a dark humor. For anyone familiar with the story, little more need be said, but Wilco Watchdog says most of it anyway.

Meanwhile, speaking of yard signs, the Watchdog reports that attorney Adam Reposa has made up hundreds of these yard signs targeting Williamson County District Judge Ken Anderson, who prosecuted the Michael Morton case and failed to turn over exculpatory evidence to the defense counsel or the court.

Terrific blog coverage of Houston DA's race
Pat-Lykos supporter David Jennings at Big Jolly Politics parses an open records request in an an attempt to separate fact from campaign-driven fiction regarding the Harris County District Attorney's DIVERT program. In another post he commented on the "freaking mess" that is the grand jury inquiry into retaliation via county contracting on DWI breath testing, questioning the political motivations of the "runaway grand jury" and providing primary documents. Yet another post earlier this month offered up a respectful, loyal-opposition type interview with Lykos' opponent in the GOP primary, Mike Anderson. Dave's takeaway: " I wish he hadn’t filed. And he told me last night that he wished he hadn’t been convinced that he had to file." First rate blog work, Dave. MORE: Soon after I posted this, Dave put up another item in the series in which he interviewed Lykos face-to-face, along with one of her lieutenants, Rodger Bridgewater. This primary battle is getting far more discussion and substantive coverage in the blogosphere than in the MSM.

Reentry volunteers work from personal motives
Nice story in the Fort Worth Star-Telegram about a coupla volunteers at Tarrant County reentry programs, one an ex-prisoner in a faith-based program and another whose daughter was murdered in a domestic dispute who now counsels ex-offenders on domestic violence.

Private prison company has 10,000+ beds in extra capacity
In a recent conference call with investors, reports Texas Prison Bidness, Corrections Corporation of America reported increased short-term revenue but also revealed they have an excess bed capacity of 10,500, confirming Grits' intuition that the "incarceration bubble" may be bursting and that private prisons in the near term will have increasing trouble filling beds. The company's stock (CXW) dropped just before Christmas when the state of Arizona announced it would not go ahead with privatization plans.

'Drug violence kept Texas families apart on Christmas'Reports KWTX.com. Also, Reuters has an excellent if depressing report on the organized crime wars in Ciudad Juarez, the Mexican city across the river from El Paso..

Police disbanded in Veracruz, MX
In Veracruz, Mexico, the entire municipal police force has been disbanded and the military has taken over security as Los Zetas and the Sinaloa cartel vie for supremacy. "The government in Veracruz state reportedly said on Wednesday that 800 police officers and 300 administrative employees had been laid off in an effort to root out corruption." This is sad: I love Veracruz, the city, the capital of Xalapa, and the rest of the state. For a while it was spared this kind of violence, but as the killing receded somewhat this year in Juarez, it escalated in Veracruz and other parts of the country. What a disaster!

Monday, December 26, 2011

Brilliant! When the "Occupy" movement came to San Antonio and took up residence in a downtown park, the city sent a parks-police officer to the protest site to enforce the city's ban on sleeping there. The protesters snapped photos of the poor fellow (who of course didn't ask for the assignment of harassing "Occupy" protesters) while sleeping on the job. KENS-TV reported that "the officer was supposed to be keeping an eye on the Occupy camp to make sure that the protesters didn't fall asleep, and to write them tickets if they did." In other words, he'd have probably done more harm had he been awake. ViaInjustice Everywhere. Related: See "Police v. OWS," from The Crime Report. See also: Matthew 7:3. Your tax dollars at work, San Antonio.

"If you want a happy ending, that depends, of course, on where you stop your story."

- Orson Welles

Regular readers will recall that Grits recently named the Michael Morton exoneration out of Williamson County the biggest Texas criminal justice story of 2011. Morton spent a quarter-century in prison for allegedly murdering his wife before he was exonerated by DNA and a team of won't-quit attorneys who fought Williamson County DA John Bradley over testing the evidence for six long years (prevailing only after the Legislature changed the law to remove Bradley's grounds for objection). It turned out prosecutors 25 years ago had failed to release exculpatory evidence to the defense, and the man who apparently did so, then-elected DA Ken Anderson, is today a sitting Williamson County District Judge. You really can't make this stuff up!

As the year's biggest criminal justice story, several publications recently issued end-of-the-year retrospectives on the event:

Now that Morton's defense team has released their prosecutorial misconduct report (pdf), as a pure news story the Morton exoneration is over. As these articles demonstrate, though, what remains is to understand what his story means and how or whether lessons may be drawn from it that could prevent more, similar false convictions in the future. Those questions are all wide open, as are what consequences any of the state actors might face and what if any reforms might be implemented in the wake of exposing such gaping, systemic flaws.

Interestingly each of the writers in the stories bulleted above seeks to draw different conclusions regarding how we should understand this horrifying episode.

For Grissom at the Tribune, the lesson is that "Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists." She quotes a lawyer from the Texas Defender service who observes, "“What passes for science in courtrooms is not always, in fact, science.” That might sound like a radical statement if the National Academy of Sciences hadn't recently found the same thing. Moreover, the Court of Criminal Appeals ruled this summer that legal and scientific truth were different things and expert testimony could be legally true but scientifically false.

Jordan Smith at the Austin Chronicle is more focused on whether "whether current D.A. John Bradley has also acted, if not improperly, at least imprudently, in his handling of the Morton case since he succeeded Anderson in 2001. Bradley fought mightily against testing of the bandana, telling at least one local reporter that to allow the DNA testing in what he apparently considered an open-and-shut case against Morton would be 'silly'; Morton was merely 'grasping at straws,' he has also said."

At the Houston Chronicle, Patti Hart focuses on the seemingly insurmountable barriers overcome by Morton's obsessively persistent defense team, without whom Morton would have spent the rest of his life in prison, as well as the larger question of how to make prosecutors fulfill their duty to turn over potentially exculpatory evidence in criminal trials, making Judge Anderson her poster child: "Under well-established law, prosecutors must share exculpatory evidence. By withholding crucial facts, Anderson could face contempt charges or even disbarment," wrote Hart. She decries prosecutors use of tactical maneuverings to avoid so-called "Brady" disclosures (after the US Supreme Court's decision in Brady v. Maryland mandating the state disclose such evidence).

Which is the right conclusion to draw? All of the above, and more. Morton's attorneys have requested a "court of inquiry" to investigate prosecutorial misconduct charges (after Grits reads their 144-page report (pdf), along with Judge Doug Arnold's deposition (pdf), I'm sure there will be more to say about that subject). In the meantime, what are the lessons for prosecutors, judges, and even defense counsel, all of whom failed miserably at their jobs 25 years ago?

Texans will be hotly debating those questions for many years, well past the legislative session in 2013, just as the Tulia exonerations still raise hackles in certain quarters. Indeed, like the Tulia case, I suspect Mr. Morton's story may become the subject of books, documentaries or even a Hollywood fillm (the Halle Berry Tulia flick was delayed because of her pregnancy but reportedly is now tentatively scheduled for a 2014 release; the story of a similar Texas drug sting inspired a Disney-backed Hollywood film, "American Violet."). If we don't see similar cultural artifacts spin off of Mr. Morton's story, I'd be surprised; his has been a truly epic saga - an almost unparalleled story of tragedy and triumph.

We shouldn't let Morton's triumph, though, deflect attention from the tragedy, however (rightly) exultant Morton and his legal team are at his release. This was a tragedy so grim it would baffle Kafka and make Shakespeare wince: Morton's wife, Christine, was brutally murdered. He professed his innocence but was falsely accused and wrongfully convicted, the victim of apparently overt prosecutorial misconduct and misrepresentations of forensic science. Then prosecutors fought for years to keep from revealing exculpatory evidence and to prevent DNA testing that ultimately led to discovery of the alleged real killer - a man whose DNA had also been discovered at a similar murder scene near the Mortons home four years after Christine's death. The alleged real killer had been living in neighboring Bastrop County for most of the intervening quarter century.

It all sounds like a Hollywood movie plot, complete with a "happy ending." But for Morton and his family, the victory, however satisfying, must be bittersweet. Nobody can give them that quarter century back. No amount of money can repay stolen time. And who knows what other crimes were committed by the real killer while Morton was locked up? We already know of one other alleged murder by the same suspect; were there more?

Indeed, isn't it a matter of interpretation whether this episode constitutes a triumph or tragedy? As Orson Welles said in the epigraph to this post, it all depends on where you end the story, or in this case, when opinion leaders and the media decide it has ended. If his conviction in 1986 had never been overturned, Morton's would remain a secret tragedy, like hundreds or probably thousands of others in TDCJ. But with Morton's triumphant release does that mean "the system worked"? Is that the end of the story? If Anderson were punished professionally, even disbarred, as Patti Hart suggests, would that retributivist homage constitute a happy ending? Would it make things "right"? How about John Bradley losing re-election, would that democratic rebuke be enough? Or perhaps if the Legislature passed a law named after Morton mandating an open-file policy for prosecutors or punishing willful Brady violations with jail time, would such preventives provide a satisfactory conclusion?

For the story writers, perhaps. But it won't bring back Morton's late wife, nor will state compensation nor half-hearted press conference apologies ever make up for what was stolen from him. For Michael Morton, who yesterday spent his first Christmas with his family since the last visit of Halley's comet, the story will continue as he struggles to rebuild a shattered life and to keep this horrible nightmare from defining and defeating him. Indeed, for Mr. Morton, not only is this not the end, the most important part of the story is just beginning. Grits wishes him all the luck in the world in the new year as he seeks to begin writing his own happy ending. I hope he finds it.

Friday, December 23, 2011

Well I was wrong: Grits predicted Governor Perry would issue 10 or more pardons this week after issuing none for the rest of the year. I was right to expect some, but guessed high: He issued eight - all for trivial, long ago offenses. Three of the eight don't even live in Texas anymore. While in general Grits calls "Humbug!" on Christmastime pardons, this was a missed opportunity. Grits had suggested that if the Governor issued 23 pardons or more, he would ensure positive national coverage by pardoning more people in one day than Barack Obama has granted clemency in his entire tenure. (Perry surpassed that mark in two prior years.) But instead, with Mitt Romney on the campaign trail saying he won't grant pardons at all, Governor Perry decided to play it safe. Disappointing.

Thursday, December 22, 2011

Journalist Michael Hall from Texas Monthly emails to let us know about a possible innocence case discussed in the magazine this month. He writes:

Here's a link to a Behind the Lines I wrote in our current issue on Richard LaFuente, who's been in a federal prison for more than 25 years for a murder he didn't commit on a North Dakota Indian reservation.
http://www.texasmonthly.com/2012-01-01/btl.php
I try to make the case that, compared to the fed criminal justice system, the state one is all sweetness and light--or at least it responds to veritable cases of injustice. Not like the feds.
Here's a link to a longer story I did on LaFuente in October 2006:
http://www.texasmonthly.com/2006-10-01/feature2.php
Thanks, and have a great Christmas.

I hadn't heard of this one. According to Hall:

Like [Michael] Morton and [Anthony] Graves, LaFuente is innocent. I’ve been convinced of this since 2006, when I spent four months reporting a story about his case. And I’m not the only one who thinks so. The murder victim’s own mother, brother, and sister have testified to parole officials that LaFuente didn’t kill their son and brother. Two federal courts ruled that LaFuente’s trial was unfair and recommended he get a new one (they were each later overruled, a turn of events one judge labeled a “gross miscarriage of justice”). The newspaper that covered the trial 26 years ago recently called the verdict “scandalous.”

So, asks Hall:

Why have Morton and Graves found justice while LaFuente has not? It’s simple, really. The first two were convicted in Texas state courts; LaFuente is in the federal system. The Texas criminal justice system, despite its reputation for being harsh, can be quite responsive to criticism. In part, this is because it is run by elected politicians or—in the case of the Texas Board of Pardons and Paroles—political appointees who are subject to, and sometimes swayed by, public opinion. If enough attention is drawn to an injustice, something eventually gets done. After Morton’s case became front-page news, not only did district attorney John Bradley dismiss the charges, but the attorney general launched an investigation into what happened.

Interesting comparison. Certainly Texas state courts have created fairly good mechanisms at least for defendants with access to exonerating DNA evidence, though on any other type of innocence claim it's still pretty tough to prevail. But it probably is true the feds are more immune to media scrutiny. I don't know enough about innocence cases in the federal system to judge which is the more difficult row to hoe - it's not quick or easy, much less "sweetness and light" for any innocent person, anywhere to be exonerated, has been my observation.

The new eyewitness ID model policy has been released by the Law Enforcement Management Institute at Sam Houston State. I haven't had a chance to vet the document in full, so will reserve comment except to happily note that the policy suggests both blind and sequential presentation of photo arrays, instead of showing them as a group. The model policy directs officers to "Present each photo to the witness separately (one at a time), in order. When the witness is finished viewing the photo, have the witness hand the photo back." That was one of the biggest bones of contention between social scientists, advocates and law-enforcement in the "working group" which your correspondent participated in on behalf of the Innocence Project of Texas, so that's a big get. They also appear to have reinstated a lot of the procedural detail that appeared in an earlier draft but was absent from the version put out prior to the recent public hearing.

More on this after the holiday, when I can go over it in detail and consult with folks who know more about such things than me. But I'm glad to see sequential presentation included, and pleased to see the process moving along on schedule.

Local Texas law enforcement agencies that do lineups or photo arrays must have detailed written policies in place by September 2012 governing how they're performed, and I suspect many will just adopt LEMIT's model policy and (one hopes) begin training on it. (At most departments, currently, lineup procedures may differ from detective to detective, with no written policies governing them.) As such, LEMIT's model will be critically important in setting a benchmark for what should be in those local policies. Given that mistaken eyewitness IDs account for 75-80% of false convictions, the statute is a big step forward.

Grits mentioned how pleased I was to see the Senate Criminal Justice Committee assigned money laundering as one of its interim charges (subjects they're assigned to study during the year between Texas' biennial sessions), and a Dec. 19 headline from the Los Angeles Times, "Cartels use legitimate trade to launder money, US, Mexico say," prompts me to suggest the committee consider focusing on the state's export sector as they investigate how money laundering occurs and what Texas-side facilitation the state might conceivably disrupt. This notable excerpt from the Times story captures the key mechanism to examine:

Here's one way it works: Instead of smuggling the money the old-fashioned way, by simply carrying it south in bags and trucks, teams of money launderers working for cartels use dollars to purchase a commodity, and then export the commodity to Mexico or Colombia. Paperwork is generated that gives a patina of propriety. Drug money is given the appearance of legitimate proceeds from a trade transaction.

By turning their mountain of proceeds into tomatoes, say, or bolts of Chinese fabric shipped and resold in Mexico, cartels accomplish two goals at once: They transfer earnings back home to pay bills and buy new drug supplies while converting dollars to pesos in a transaction relatively easy to explain to authorities.

The focus on goods exported to Mexico jumped out at me in particular because of another recent article, this one from Texas Monthly, on the causes of Texas' economic "miracle" which included this notable tidbit: "Of the $207 billion worth of goods Texas exported in 2010, more than a third were sold to Mexico, which adds up to an amount three times greater than those of our fellow border states (California, Arizona, and New Mexico) combined."

So exporting goods to Mexico is a key money laundering technique and Texas leads the other border states, by a wide margin, in exports to Mexico. In fact, Texas exports more, by dollar amount, than any other state.

For my part, I doubt that's a complete coincidence. Over the summer, Grits published a post titled, "The real secret behind Texas' economic boom: Drug trafficking." If I had it to do over I'd have put a question mark on the end of that title, since Texas' economic success is caused by a confluence of factors. But my main argument stands: That Texas' role as a drug distribution and money laundering hub funneled billions of dollars into the economy over the last decade, much of which propped up "legitimate" businesses laundering money for cartels. As I wrote then:

Not just cartels but also mid-level distributors set up front companies that lose money as a practical matter but serve as vehicles through which they can launder drug cash, making it a lot easier to distribute either back to Mexico or to other stakeholders in the US. This is happening today on a fairly widespread basis and it means a lot more marginal businesses stay afloat - how many, no one can tell - to perform what amount to retail-level money laundering functions.

Adding the Times' analysis into the mix, it's a small leap to guess that many Texas businesses propped up by drug money are likely in the export business. As it turns out, reports the Times, dollars are harder to spend in Mexico these days than in the past, and cartels have a pressing need need to convert their holdings to pesos, for a variety of reasons discussed in the story. So bringing dollar bills across the border in a suitcase isn't good enough anymore. Thus the increased reliance on the export trade.

Examining the details arising from criminal cases is probably the best way to study how money laundering is occurring on the ground, and a significant number of those involve export businesses. Of all the examples I've heard of, though, one recent export-based money laundering scheme stands out above all others in Texas centered around the federal Ex-Im Bank. The story was well-covered for a time back in 2007 by reporter Byron Harris at WFAA in Dallas (but hardly anyone else) and Grits has written about it extensively. But somehow it never got traction the way Fast and Furious did; there were no Congressional hearings to investigate, and the people involved not only didn't lose their jobs but got promoted, while "reforms" resulted in only "voluntary guidelines" for lenders that did not forbid the same practices in the future. (Selling guns to cartels makes bigger ruckus, for whatever reason, than the government making nine-figure loans to drug runners that we never collect, or the DEA conspiring to launder their profits.)

The Ex-Im Bank is a federal agency that gives loans to businesses, including foreign companies, to purchase US exports. They made hundreds of millions in bad loans to Mexican companies during the Bush Administration, many of which went to non-existent front companies or outfits associated with drug cartels. Soon after the problems were discovered, and papered over, ironically, the chair of the Ex-Im Bank was named chief investment officer of the TARP fund that bailed out Wall Street. I'm only aware of one criminal prosecution stemming from the episode - a federal money laundering case (pdf) out of San Antonio that has now had time to play out.

To seriously tackle money laundering, then, the focus perhaps shouldn't be as much on suitcases of cash crossing checkpoints - a tactic that's already relatively well policed and less optimal for drug cartel liquidity - so much as crates of cargo leaving DFW Airport or in ships from the Port of Houston. Unlike investigations into drug smuggling, the Texas-side targets in money laundering schemes are more likely members of the local Chamber of Commerce, or else perhaps corporate or government bureaucrats, than tattooed gangbangers..

But will a "less government" Legislature be willing to proscribe, regulate or criminalize activities of seemingly legitimate export businesses, only a fraction of which engage in money laundering, in order to get to the bad eggs? For that matter, can a state regulate exports sufficiently to make a dent in the problem, or is that more properly and practically a federal role? Which reaches the even larger question: Besides southbound checkpoints aimed at seizing cash, what is the state role in investigation and prosecution of transnational money laundering? What can Texas do that the feds can't, or aren't doing? I suppose that's what the Senate Criminal Justice Committee will be discussing at the hearing on their interim charge.

Wednesday, December 21, 2011

Having in a past life worked as a professional opposition researcher in more than five dozen campaigns, I've had the opportunity over the years to watch more than my share of politicians melt down under pressure, both my own clients and opponents, during heated campaigns. And there are signs that's what's happening with Williamson County DA John Bradley, judging from this TV news report from KVUE, which I saw via the Wilco Watchdog. There we find a bizarre claim by Bradley that his electoral opponent, County Attorney Jana Duty, initiated the pending grievance against him at the State Bar, which he went on to deny even existed ("not a grievance but a complaint on a piece of paper which he says came from Jana Duty"). In fact, Jana Duty did not file the grievance. As Grits reported here, it was a woman named Julie Oliver from a group called the Texas Coalition for Lawyer Accountability. See their press release.

The Watchdog sees this odd divergence from the facts as evidence that John Bradley's "Road to Damascus" moment, as Grits called it in this post, may be short-lived:

Grits reported a few weeks back a story on John Bradley’s election year transformation. It was titled “On the Road to Damascus: The Conversion of John Bradley?” One line from the post stated “Any such optimism regarding Bradley's newly announced conversion, though, should for now remain measured. He’s got a long record, and it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.'"

Bradley was also quoted as saying “It would be very easy I think for me to get upset, bitter, and just react to all of that stuff but I’ve never really approached things that way.”

It appears Bradley’s road to Damascus moment just hit a dead end and he has exited back to “Bradleyland.”

The Watchdog adds that "Sources close to Bradley have stated that he is in complete 'panic mode' and is 'desperate' to salvage any remaining hope in being re-elected." This faux pas certainly sounds like desperation to me. I'd have thought JB was smarter than to just begin flailing and making stuff up. Issuing unfounded attacks you'll inevitably have to retract isn't the way to make up ground if the incumbent DA hopes to salvage his reelection chances between now and the April 3 primary.

Tuesday, December 20, 2011

I wanted to let you know that Anderson Cooper is scheduled to air a segment tonight on a disputed Texas case—the murder conviction of Warren Horinek that was based on apparently faulty blood spatter evidence.

On Sunday, Grits broke the news that Corrections Corporation of America had submitted a bid to manage the Harris County Jail, citing information given to investors about a county-issued RFP which hadn't been reported in the local media. Last night, the local Fox TV affiliate confirmed it:

"We are also very excited about the opportunities that are before the industry and for which we feel well positioned. We're awaiting a decision from Arizona on its 5,000 bed request for proposal as well as a managed-only opportunity for approximately 9,000 beds in Harris County, Texas.”

County officials confirm private talks are underway to consider privatizing the county jail.

No one from the county would speak to the Fox reporter on the record. Commissioner Steve Radack "said the process is confidential and he won't know the full details until his staff finishes reviewing the proposal." Which ignores the larger questions: Why is the process "confidential" (read: secret) in the first place? Why are privatization schemes being hatched in private instead of in public discussions? Why do CCA investors know more about privatization plans for the Harris County Jail than local media and the taxpayers? The Harris County Jail is bigger than the prison systems in half the states; should something this big really be done in a back-room deal before the public even knows it's happening?

UPDATE: Here's a copy of the RFP issued by Harris County for privatizing jail services, obtained by your correspondent this a.m. under the Public Information Act.

Grits wrote on Sunday that it's "almost becoming the norm in Texas jails to understaff them considerably and make up the difference paying overtime at time-and-a-half." I was writing about the jail in Midland, but the same thing's going on, reports the SA Express News ("Disputes over jail staffing may move closer to resolution," Dec. 20) at the Bexar County Jail in San Antonio, much to the commissioners court's consternation. The story opens:

Guards are being forced to work excessive overtime and will continue to steadily quit as their morale hits all-time lows, the consequence of cutting 100 positions at the Bexar County Jail through attrition, warns Sheriff Amadeo Ortiz.

But ask county commissioners and County Manager David Smith, and they'll tell you the mandatory overtime is unnecessary, the jail is mismanaged and wastes money, and the 2012 budget cuts reflect the actual needs at the facility.

Conflicting views of the jail aren't new in Bexar County, but a new staffing analysis by the Texas Commission on Jail Standards, the state jail oversight agency, is expected next month and could bring the two sides closer.

“We have no vested interest as a third party,” said TCJS Executive Director Adan Muñoz. “Our only concern is: Can you get enough people to show up when you need them to? We do this routinely for jails, and it usually amounts to a difference of opinion between commissioners courts and sheriffs' offices.”

The commissioners court is frustrated that reducing the jail population hasn't resulted in tangible savings for the county budget:

“Obviously we don't agree with the way that they're running the jail,” said County Judge Nelson Wolff. “They refuse to recognize the fact that we have 500 less prisoners, and they still want the same number of people. It doesn't make sense to us.”

In January 2009, when Ortiz took the helm, there were 932 detention officers and the average daily inmate population was around 4,300, according to Smith. That summer, population peaked at around 4,600. Last week, it dipped to less than 3,600, a level not seen in a decade.

Staffing wasn't cut until the 2012 budget, passed in September. Exactly how many guards remain depends on whom you ask.

“We've used tons of money on drug courts, on mental health courts, on trying to treat people instead of incarcerate them,” Wolff said. “We've brought the population way down, but there's no savings on running the jail.”

For starters, kudos to Bexar County (and it could only result from a collective effort by many people) for reducing the jail population 22% in a year-and-a-half. That's a remarkable accomplishment. And indeed, it does seem queer that overtime costs haven't declined as a result.

At a staffing ratio of 48-1 (mandated by the Commission on Jail Standards), in theory a reduction of 1,000 inmates would allow the jail to have 20 fewer guards on duty at any give time. Other jails that have reduced populations were able to commensurately reduce jail expenditures. So I can understand commissioners' frustration. But classification issues and other complications aren't taken into account in such back-of-the-napkin calculations, so it's good they've turned to TCJS as a neutral arbiter.

Such conflicts between sheriffs, who run county jails, and commissioners courts, who hold the purse strings, are a fundamental, structural feature of jail oversight in Texas. While providing additional checks and balances, it also frequently results in gridlock and needless conflict over rather routine management decisions, particularly when commissioners and the sheriff come from different political parties or indulge in personal feuds. I don't know who's right about the jail staffing question in Bexar County, but it seems to me a factual dispute, not an ideological one.

The next meeting of Court of Criminal Appeals Judge Barbara Hervey's Criminal Justice Integrity Unit has been set and addresses an issue I'm sure will interest many Grits readers beyond the innocence questions taken up by the CJIU so far. From the email:

Monday, December 19, 2011

The Texas Attorney General has (finally) filed suit against the Texas Highway Patrol Museum and its related entities, which Grits readers will recall operate a telemarketing scheme picking the bones of dead state troopers by raising millions via telemarketing while giving less than a penny on the dollar to the supposed beneficiaries. Reports the SA Express-News ("State sues Texas Highway Patrol Museum in SA," Dec. 20):

Attorney General Greg Abbott has sued organizations tied to the Texas Highway Patrol Museum in San Antonio and accused them of illegally soliciting donations from the public and wasting money on trips, liquor and “exorbitant” pet care for a cat.

Contrary to its official-sounding name, the highway patrol museum at South Alamo and St. Mary's streets is not affiliated with the Texas Department of Public Safety. It is actually a telemarketing organization that raises millions of dollars in the name of helping DPS troopers.

But Abbott's lawsuit, filed in Travis County last week, alleged that few benefits were actually paid to troopers. Instead, funds were spent for personal use. One corporate credit card was used to buy cigars, liquor, and meals, the lawsuit alleges. The expenses were not reimbursed.

The lawsuit says museum funds were spent on “exorbitant vet bills” for an “office cat” that was kept at an Austin office. Tim Tierney, executive vice president of the organizations tied to the museum, said the expenses were justified because the cat kept employees happy, according to the lawsuit.

The museum's assets have been frozen and a temporary receiver has been appointed to oversee it.

Good! It's way past time. They should take a similarly close look at the two dozen or so other entities in Texas doing the same thing - most of them are scams, too.

Via Unfair Park and Injustice Everywhere, on Nov. 5 Occupy Dallas protester Stephen Benavides was arrested, maced and spent four days in jail for allegedly assaulting an off-duty police officer, 19-year veteran Jimmy Hollis. When video showed that Hollis actually initiated the violence by shoving the fellow off a 4' planter, the chief issued a one-day suspension without pay and forbade him from working off-duty jobs for 60 days. So the cop got a day off and missed out on a few holiday security gigs, while his victim was attacked, maced, spent four days in jail, and is still waiting for charges to be formally, finally cleared. Dumb, dumb, dumb.

Often protest movements that begin small escalate not because of the righteousness of their cause (or in this case, the nebulousness of it) but because the state engages in police brutality or illegal methods to suppress or discredit it. That's the risk run when police respond violently to Occupy protesters. And doling out slaps on the wrist to offending cops in incidents like this one adds insult to injury. Remember it wasn't the images of Rodney King's beating that sparked riots and national protests back in 1992, it was the acquittal of the officers so clearly seen wailing on him in the video. People understand there will always be bad apples, but they want to see them held accountable.

I'm not a great fan of the Occupy movement, but neither do I endorse a police officer initiating violence then blaming it on protesters. The cop in that video wasn't doing his job, he was just a bully in uniform.

found that bail bondsmen across Texas ... [write] millions in bail bonds while pledging real estate collateral worth a small fraction of that amount. Some hire private appraisers whose property values are dramatically higher than tax values that they contest.

Counties may collect only nickels or dimes on the dollar when they try to sell the properties pledged as collateral if bail bondsmen can’t pay for bonds that go bad, or if they go out of business. And that means financially strapped counties could lose many millions in revenue.

The Texas Occupations Code allows bail bondsmen in large counties to write bonds worth five to 10 times the value of real estate placed in trust with a bail bond board, depending on how long they’ve been in business and whether their license was ever suspended or revoked. Another option allows bondsmen to use insurance companies that back their bonds.

“The county has taken bath, after bath, after bath,” said Don Davis, a longtime assistant district attorney in Dallas County who monitored bail bondsmen. “If you don’t have a 1-to-1 ratio, that’s when the temptation is to start taking liberties with your liquidity and try to make as much money as you can before you pull out.”

The lengthy News story found that consistently property appraisals used to justify bail bonds were vastly higher than the appraised value at the tax assessor's office, and in some cases bail bond companies submitted much lower appraisals to the county taxing district disputing their valuation than the inflated estimates given to local bail bond boards. In some cases bail bond companies used appraisers with a history of disciplinary actions for writing inflated appraisals.

Krause and Timms have been tearing this story up for months. In a related item from December 6 (that's not behind the paywall), the Dallas News editorial board opined that:

At the very least, the standard operating procedure underpinning Dallas County’s bail bond system should be “trust but verify.” As revealed by this newspaper, the situation is more like “look the other way and approve.”

In a series of articles stretching back to June, The Dallas Morning News has detailed numerous cracks and loopholes in the county’s bail bond system. Shoddy follow-through is costing county taxpayers and making a mockery of a system intended to assure that a defendant doesn’t simply disappear.

The latest fiasco, detailed by reporters Kevin Krause and Ed Timms earlier this week, involves bondsmen who filed court papers claiming that clients whom they had helped get out of jail — and who later skipped town — had been rearrested. Those rearrests of bail jumpers saved the bondsmen substantial money.

There’s just one problem: Many of the bondsmen didn’t file — nor did judges and lawyers demand — basic documentation to back up the rearrest claims.

Let’s start with the disturbing fact that some bondsmen just make up these stories. How do citizens have confidence in a system that condones that kind of abuse? Equally important are the pocketbook implications of this laziness and dishonesty.

I'm continually amazed at the deference afforded bail bondsmen by state and local officials. The amounts of money they give in political campaigns don't seem to justify it, but examples like these show there are a lot of folks willing to carry water for the bail bond industry, or at least, when necessary, to "look the other way."

The Michael Morton defense team's prosecutorial misconduct report (pdf) came out today "requesting a court of inquiry to examine the role of Williamson County state district Judge Ken Anderson, the former prosecutor, in Morton's wrongful conviction," reports the Texas Tribune. The Austin Statesman also has preliminary coverage. I'm gonna take time to read the 144-page document before commenting, but thought some readers would want access to it ASAP.

MORE: Thanks to a commenter for pointing out the transcript of Judge Doug Arnold's deposition (pdf). He was the assistant DA for Bradley in charge of post-conviction issues including the Morton case from 2005-2009. Notable quote on opposing DNA testing of the bloody bandana: "I thought that our positions were, at the time, legally justifiable. I don't think that any longer."

Sunday, December 18, 2011

Grits predicted Gov. Perry would receive positive press from his parsimonious clemency record if the campaign played up the issue, and indeed, as if on cue, Pro Publica came out with a story titled "Perry more generous with pardons than Romney." Since Perry usually grants pardons to about 3% of those requesting them, but some years granted up to 10%, Grits argued back in October that Perry could use Christmastime clemency to separate himself from the other presidential candidates:

In the past, Perry has rejected about 2/3 of clemency recommendations from the Texas Board of Pardons and Parole. Perhaps a good start would be to simply accept more or most of the BPP's recommendations this year (it's not like the people he's appointed to the parole board are a bunch of softies) instead of selecting a symbolic few. Nobody can grant clemency except state or federal executives like Perry and Obama, so a robust clemency approval by Perry this December might generate at least a news cycle or two of interesting press analyzing the pair's relative clemency records (where Perry already compares favorably). By granting more-than-usual clemencies this December, Perry would likely generate good media with little near-term Wille-Horton-esque risk, while setting the story up inevitably as comparing Perry and Obama (since none of the other GOP candidates can grant pardons) and thereby making the governor appear more presidential.

I'm not confident Perry will do that, but if he doesn't he'll have missed an opportunity to separate, even elevate himself in a controlled, positive media moment from the other GOP contenders and the president. And at the moment, his is a campaign that needs to separate itself from the pack.

I'm generally not a fan of Christmastime pardons. From a candidate's perspective, though, the Pro Publica piece is one of the few, recent positive articles I've seen on Perry and it would be a wasted political opportunity if the governor didn't use the Christmas pardon ritual to his own public-relations benefit, especially now that the campaign can see how the issue plays in the national media.

Grits' prediction: Governor Perry issues 10 or more pardons between now and Christmas day, making the national news cycle for a day or two with mostly positive press. That said, if he really wants to use the issue to trump the president, Gov. Perry should issue at least 23 pardons, a number he surpassed in 2003 and 2005. That would also be one more than President Obama has given out since he took the reins of power three years ago: A sure-fire news hook.

MORE: At Sentencing Law & Policy, Doug Berman comments on the Pro Publica story and this post, wondering if, "with the Iowa evangelical vote still up for grabs ... Perry might try to make hay by finding a few very appealing stories of redemption to spin around a few high-profile clemency grants. I am not counting on such a development," wrote Berman, "but I sure like the notion that for once a politician might start granting, rather than consistently deny, clemency requests in an effort to curry political praise."

Grits had noticed last month that the two largest private prison companies - the Geo Group and Corrections Corporation of America (CXW) - had been said to have "bearish technicals" by analysts at Market Investment Watch, which jibed with Grits' past assessments that both firms (but especially Geo) were excessively laden with debt. So I was surprised to see that a Zacks.com analyst had recently rated Corrections Corporation of America a "buy" stock. Since Grits mentioned the recent negative assessment, I decided I should report this positive one, as well.

Quite remarkably, an accompanying article from Zacks said part of the company's optimism stemmed from the fact that they're currently "awaiting the decision" on a "managed-only opportunity for about 9,000 beds in [the] Harris County, Texas" jail. I knew Harris County had agreed to "study" privatization, but "awaiting the decision"? Does Corrections Corporation of America really believe they may soon manage the Harris County Jail under contract? Is that delusional, or do they know something the rest of us don't?

Perhaps they do. According to a knowledgeable source in Harris County, the Office of Purchasing and Management Services told county commissioners they couldn't assess potential savings without doing an actual request for proposals (RFP), so they did one. Bids are sealed, said my source, and nobody is supposed to know who submitted one. But clearly from the Zacks report, Corrections Corporation of America put in a bid and is telling investment analysts the contract might boost their bottom line in the near term. That seems a tad presumptuous.

Grits still thinks the two largest private-prison firms are risky investment bets for two reasons: Both are too overloaded with debt, and I think (perhaps wishfully) we may be on the cusp of seeing the "incarceration bubble" burst. That's particularly true in the industry's main growth area - immigration detention - so I wouldn't endorse a long-term favorable assessment for these stocks.

Certainly, of the two, CXW's situation appears far preferable to Geo's, which really is operating on an extremely over-leveraged basis (i.e., they issued way too much debt to gobble up competitors instead of winning new contracts through competitive bidding). If Geo didn't look like such a dog, I doubt CXW would look nearly as good to Zack's analysts except by comparison. But I question their long-term growth potential when crime rates are declining, states are de-incarcerating, both companies have spotty health and safety records, and folks like Newt Gingrich and Rick Perry are out on the campaign trail touting comprehensive immigration reform.

Even more specifically, I don't think Harris County is likely to privatize its jail anytime soon, to the extent that was cause for extra optimism by analysts. When it was discussed last, the votes didn't seem to be there. Plus any savings would come from cutting guard pay and benefits, and that won't happen without some sort of political rebellion/retaliation from the folks who currently staff the facility. I know Grits won't be the only one caught by surprise if Santa brings CXW a new contract anytime soon to run the jail in Harris County.

Midland County is looking for warm bodies - just about any they can find - to staff the county jail. Reported NewsWest9.com this week:

They're experiencing a shortage, a hole that would take a dozen new jailers to adequately fill it.

"We got down as far as 20 at one time," Midland County Sheriff, Gary Painter, said. "We're having to work a lot of overtime with the employees that we have now, setting it up to where they have one day off a week, and working the other days overtime. It's been crucial for us to have enough people on the floor at one time in order to handle all of the situations that we've got to take care of."

They've been having this problem for more than a year now.

In jail blocks, there has to be one guard for every 48 prisoners and the jail has been known to house up to 360 prisoners over a single weekend.

This influx of inmates at the Midland County Jail is stretching their staff thin....

With the way this shortage is putting stress on the current jailers, Sheriff Painter fears he'll lose even more to exhaustion.

"We're needing to hire 12 employees right now," he said. "You can work people just so much and they get tired. They get burned out. Some of them are getting worn out pretty bad. Some of them have quit because of it."

The Midland County Sheriff's office is taking applications.

Sheriff Painter said no one with a criminal background will be able to work in the jail. Painter said as long as you are at least 18-years-old, pass the background check, drug test, a physical and a psychological test, you are eligible.

This is almost becoming the norm in Texas jails, to understaff them considerably and make up the difference paying overtime at time-and-a-half. As a short-term fix, that's fine, but increasingly this is the structural solution to understaffing from budget to budget over many years. (The state's biggest jail in Harris County is the iconic example, among many others.) In Midland, the staffing problem is exacerbated by competition with oil-field work, with oil prices hovering around $100 per barrel.

The other option to paying overtime or hiring ever-more jailers is, of course, unthinkable: Arrest and/or incarcerate fewer people. We couldn't have that.

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